Vincent v. Salt Lake County, 15311

• Decision Date: 07 August 1978
• Docket Number: No. 15311,15311
• Citation: 583 P.2d 105
• Parties: Harlow VINCENT and Maxine Vincent, his wife, Plaintiffs and Respondents, v. SALT LAKE COUNTY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 105

583 P.2d 105

Harlow VINCENT and Maxine Vincent, his wife, Plaintiffs and Respondents, v. SALT LAKE COUNTY, Defendant and Appellant.

No. 15311.

Supreme Court of Utah.

Aug. 7, 1978.

Scott Daniels of Snow, Christensen & Martineau, Salt Lake City, for defendant and appellant.

Thomas A. Duffin, Salt Lake City, for plaintiffs and respondents.

MAUGHAN, Justice:

Plaintiffs Harlow and Maxine Vincent sued defendant Salt Lake County to recover for damages to their garage caused by a leaking county storm drain. A jury trial resulted in a judgment for plaintiffs in the amount of $14,583.47, from which defendant appeals. We affirm the judgment of the trial court. Costs are awarded to respondents. All statutory references are to Utah Code Annotated 1953, as amended.

Defendant argues three points on appeal: 1) plaintiffs' claim is barred by the statute of limitations under the Governmental Immunities Act; ¹ 2) the leaking storm drain was a "latent defect," for which immunity is not waived; ² 3) the trial court erred in its instruction to the jury on nuisance.

The facts are basically undisputed. In 1957, defendant installed a storm drainage system across the Olympus Heights Subdivision. Plaintiffs purchased their lot in 1958, and constructed the home in 1959 and 1960. The storm drain was not uncovered or discovered by plaintiff or the builder at any time during the construction.

Because no easement of record existed, plaintiffs did not know the exact location of the storm drain in relation to their home. Harlow Vincent testified he was aware of the existence of the storm drain, but thought it was along the property line; it was actually one foot away from the footing on the south side of the garage.

In 1971, Mr. Vincent noticed some hairline cracks in the garage wall, but ignored them, since they did not appear serious. In the spring of 1972, plaintiff noticed the cracks had widened. He wondered if the storm drain might be causing them, so he asked Salt Lake County Flood Control to inspect it. A few days later he called again and was told an inspection had been made and that no correlation existed between the storm drain and the cracks. William Kasworm, the Superintendent of Salt Lake County Flood Control from 1961 through 1972, testified he was called by the Vincents in 1971 or 1972 about the storm drain, and he sent a crew out to investigate. The crew went inside the pipe, and, upon discovering the joints were unsealed, grouted some of the joints. Mr. Kasworm testified that despite the County's knowledge of the unsealed joints and the damage to plaintiff's garage, "We just told him we didn't think it was our problem." However, the evidence established the County knew such joints often leaked water.

The cracks had widened to about one-fourth inch in the spring of 1973, prompting plaintiff to again call Salt Lake County Flood Control. The storm drain was once again inspected, and the County reported no correlation between plaintiffs' problem and the storm drain.

When plaintiff noticed additional cracking in the spring of 1974, he met with the Engineering Coordinator for Salt Lake County Flood Control, but was given "no satisfaction." During the summer of 1974, the wall of the garage began to bow, the beams began to twist, and the roof sagged. In August plaintiffs hired a contractor who excavated along the garage and discovered the leaking pipe. The evidence established the pipe had not been sealed around the joint, and that water had been leaking from it into the soil underneath the foundation of the garage wall. Expert testimony was presented on the effect of the water upon the soil and the footings, from which the jury concluded the leaking pipe was the proximate cause of the settling foundation and damage to plaintiffs' garage.

Upon discovering the pipe was indeed leaking water under the foundation, plaintiff gave written notice on August 30, 1974, of the damage and his claim. Defendant asserts, as it did to the trial court, the notice was beyond the period of limitation set forth in Sec. 63-30-13 of the Governmental Immunities Act. That section, before its amendment in 1978, stated:

A claim against a political subdivision shall be forever barred unless notice thereof is filed within ninety days after the cause of action arises; . . .

The trial court ruled as a matter of law plaintiffs' claim was not barred under Sec. 63-30-13, without specifying in the record his reasons for so doing. In their brief, plaintiffs argue four alternative theories which this Court could apply to affirm the trial court's decision. While the decision could be affirmed on more than one of the theories, we simply hold, under the facts of this particular case, no cause of action arose until plaintiffs actually discovered the storm drain was leaking water underneath the garage foundation, in August of 1974.

Our holding is based upon the following facts: Salt Lake County installed the storm drain before plaintiffs owned the property; no easement of record existed by which plaintiffs could ascertain the location of the pipe; the pipe was not discovered during the construction of the house; plaintiffs were told at least three times over the period of three years the pipe was not causing the damage to the garage; the Superintendent of Salt Lake County Flood Control told plaintiffs the pipe was not the cause of the damage even though he had sent a crew to grout some of the joints; he knew the pipe joints were unsealed, and he knew such joints often leaked water.

This Court stated in Christiansen v. Rees : ³

It seems somewhat incongruous that an injured person must commence a malpractice action prior to the time he knew, or reasonably should have known, of his injury and right of action.

Likewise, it is incongruous to require plaintiffs to commence an action against the county when the cause of the damage is unknown to plaintiffs, and they have reasonably relied to their detriment upon the county's false representations regarding the leaking pipe. The trial court did not err in holding plaintiffs gave timely written notice on August 30, 1974.

Defendant's second point is, the leaking storm drain was a "latent defective condition" within the meaning of Sec. 63-30-9. That section provides:

Immunity from suit of all governmental entities is waived for any injury caused from a dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement. Immunity is not waived for latent defective conditions. (Emphasis added.)

The parties have cited no cases construing...